Synchronization Agreements - Part One

 
 
1st Sept 2009
SYNCHRONISATION AGREEMENTS - Part 1 David McLaughlin c/o of New Zealand Musician Magazine Introduction
As the music industry continues to deal with declining sales of CDs and the ever present online piracy of digital music (according to some estimations as much as 95% of the downloading and accessing of music that takes place over the internet occurs by illegal means) its never been more important for us to think about the other ways we can get paid for the music we produce. Synchronisation

A very good example of this is the synchronisation of music. All that synchronisation really means is ‘music with pictures’ or the synchronizing of music to some kind of image. In other words we are talking about music used in film TV video games and any other medium you can think of where music provides background to what is being presented in the visuals up front. Film and TV

For the purposes of this article we’re going to focus on the use of music in film and TV as these uses are by far the most common. We’re also going to be dealing more specifically with the use of featured music such as a single song from an album used at some point in an advert TV show or film. This is different from the atmospheric and mood building music which may be written to run throughout a film or TV show like the very grand orchestra music playing in the climax sequences of a Hollywood blockbuster. Songwriters
?Where any music is used in film or TV there are a number of legal issues that have to be dealt with in a Synchronisation Agreement. Most importantly approval must be obtained from all the owners of the music in question. Firstly here we are talking about all the songwriters. If the music being used is also not a new specifically created recording of the song but rather an already existing recording such as the version from a band’s album then permission will also need to be obtained to use this recording. If the song was recorded for a record label then the record label will generally be the owner of the recording. Two Rights
Because of these two very different sets of rights involved it is common to see a separate Synchronisation Agreement with both the songwriters and then the record company that owns the recording. However if your band owns all of its own recordings then there is no reason why everything can’t be dealt with in the same agreement. Licence Only
?In terms of ownership a very important point to note here also is that a traditional Synchronisation Agreement should only ever involve you granting a licence to someone to use your song on certain conditions. It should never involve you transferring ownership of your song and should also not restrict your ability to licence your song for any other uses including for inclusion in other films and TV shows. Use
After dealing with the issue of ownership one of the next most important issues to consider in a Synchronisation Agreement is what exactly are you allowing your song to be used for. There are a few different aspects to this. What Movie
Firstly make sure it is defined what movie or TV Show your song is to be used in. After all you may be happy for your song to be used in a powerful uplifting drama which you have been specifically provided some good background information on but you may not be so keen for it to be used in just any other film the person acquiring the rights from you decides. Featured
Secondly is your song to form part of the general soundtrack in the movie in other words be used in the same way as a number of other songs are used throughout the movie at different points or is your song to be featured in a much more prominent way? For instance is it to be the theme song for the movie or perhaps the song that is used to highlight the romantic interest between two characters throughout the film or TV show? Protection
?Issues like this can definitely influence the price that should be paid for the use of the song so its important these issues are defined in the Synchronisation Agreement. Also for whatever reason you may be happy for your song to be used as part of the general soundtrack in the film or TV show but you may not be comfortable for it to be so expressly linked to the movie such as occurs when a song is used as either the theme song or to represent the love interest between characters. If this is an issue for you then make sure the Synchronisation Agreement gives you the protection you are after. Distribution
In terms of the use of your song the other big issue to have clarified is the extent to which the TV show or film will be distributed. Although generally films will require world-wide rights to use the song the rights required by TV shows may not necessarily be so extensive in every case. Similarly what type of medium the film or TV show will be distributed through also has to be considered. Are we talking about more traditional use such as cinematic release or broadcast on TV or are we also talking about home rental DVDs and digital distribution such as through the internet. All of these factors will in theory affect the price that should be paid for the use of the song and may also affect how you feel about your song being used. Next Time
In the next issue of our Music Law Newsletter we’ll be continuing our discussion of the important legal issues to be aware of in Synchronisation Agreements including looking at some of the more specific issues that arise when music is used in adverts. Questions
In the mean time  if you have any queries or questions in respect of the above please don’t hesitate to contact me at david@mclaughlinlaw.co.nz or on 021 630 201 or 09 363 2738. Pass it on
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Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article. This article written by David McLaughlin of McLaughlin Law recently appeared in New Zealand Musician Magazine and has been reproduced with the kind permission of New Zealand Musician Magazine. www.mclaughlinlaw.co.nz
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Synchronisation Agreements Pt. 2